Constitutionality of Health Reform: An Argument for Popular Constitutionalism

It was June 1793, a summer of discontent for the nascent opposition in Washington, and Thomas Jefferson had a problem: A political adversary in Virginia was rumored to be contemplating a run for the House of Representatives. Jefferson, concerned that the House provided a powerful perch, hit on the idea of banishing the adversary to a political backwater instead. “Hence,” he wrote at the time, “I think nothing better could be done than to make him a judge.”

It was many years later, but on the question of whether the bench supplied a platform for power, the target of Jefferson’s machinations—John Marshall—laughed last. Still, Jefferson’s assumption that the bench was a political wasteland from which no influence could be exerted illustrates a perspective missing in constitutional considerations over the Affordable Care Act. The question the Court must answer is not merely whether the law is constitutional—the topic of virtually all the questions the justices asked—but also whether that decision is one for the judiciary to make.

That will sound peculiar to contemporary ears, which are accustomed to assigning the judiciary the last word on matters of constitutional interpretation. But it would be familiar to the Framers of the constitution. Their judicial philosophy was neither originalism nor progressivism but rather restraint.

The Founders assigned Congress and the President, not merely the Courts, prominent roles in constitutional interpretation. James Madison, who knew a thing or two about original intent, said that giving the judiciary the last word in constitutional questions “was never intended, and can never be proper” in a republic. While Congress’ capacity for constitutional debate has atrophied as the courts have increasingly assumed that sole power for themselves, the fact remains that Congress did consider constitutional objections to the Affordable Care Act and passed it over them.

Might Congress have been wrong? Of course, but that does not mean the judiciary should substitute its judgment for theirs. Alexander Hamilton’s Federalist 78, the paramount founding document on judicial review, said the judiciary could only overrule an act of Congress in a case of “irreconcilable variance” with the Constitution. The question, in other words, is not whether judges believe a law to be unconstitutional. It is whether it was unreasonable for Congress to conclude otherwise. The fact that the Court appears to be so closely divided on that question is evidence that it should probably refrain from imposing itself, even on a constitutional question.

Such an ethic of judicial restraint is a casualty of the contemporary debate between advocates of original intent, who tend to oppose the Affordable Care Act, and a living Constitution, who generally support it. The problem with the dispute between those judicial philosophies is that both sides apparently agree that judges should exercise power based on them. The five conservative justices who raised questions about the individual mandate should also—on the grounds of their own philosophy—be raising questions about the proper extent of their own power.

To give the Court final say over constitutional questions is to assign to judges what is actually a responsibility of citizens. The Founders saw constitutional questions as appropriate fodder for political discussion and, crucially, persuasive conversation. Americans who disagreed with a law, including on constitutional grounds, were supposed to apply themselves to the difficult but ultimately more secure task of convincing a majority of their fellow citizens of the justice of their views.

But as a duty and skill, persuasion is the saddest casualty of the assumption, now largely unchallenged, of judicial supremacy in constitutional matters. Democracy requires what John Adams called “the great political virtues of humility, patience, and moderation.” The humble and patient accept losing gracefully and rise to fight again; those with moderation act, in victory, in accordance with the knowledge that a future battle is likely to place them on the other side. By contrast, those who react to any loss in Congress by challenging the outcome’s legitimacy in the courts are the political equivalent of the child who, having lost a game, takes his or her ball and storms off the field.

Conservatives complained when progressives, having lost battles on the field of public opinion, refought them before the Warren Court. But the challenge to the Affordable Care Act—which was filed by Republican state attorneys general—belies a willingness to use the Roberts Court for the same purpose.

Several justices on that Court are said to believe in the philosophy of original intent. If such is their goal, the original intent that matters most in this case is judicial restraint. Regardless of whether the justices believe the Affordable Care Act to be constitutional, it is neither proper nor healthy for republican government for them to take that decision on themselves.

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After reading the above, consider the following:
Why do forms of representative governments have constitutions?

Why do we have – a – constitution?

With all the words about “original intent,” why do we have – this – constitution, rather than some form closer to that which provides the English form of absolutism in its parliamentary form?

Of course, the Wilsonian view is that we should no longer have – this – constitution, but rather a constantly reorganizing social order of some “organic” nature, whose functions are to respond to “needs” and “objectives” determined by the “qualified.”

The author concludes:

“Regardless of whether the justices believe the Affordable Care Act to be constitutional, it is neither ***proper nor healthy for *republican* government *** for them to take that decision on themselves.”

How or why is it neither “proper nor healthy?”
What is to be the nature of a “republican” (representative?) form of government if the members of the legislative branches are to be the sole determinors of the extent of their powers?

The question — why do we have a Constitution if not for the judiciary to enforce it — reflects the extent to which we have learned to conflate constitutional supremacy with judicial supremacy. If we begin with the assumption that the Founders understood their own regime, we have Madison saying the judiciary should never pronounce last on constitutional questions and Hamilton saying the judiciary should speak only in the case of “irreconcilable variance” — a bar quite high. This does not make the legislature the judge of its own powers. It makes the deliberate will of the people the ultimate arbiter of the Constitution. The Constitution supplies procedural mechanisms that help ensure the deliberate nature of the popular will. But there is no sense in which the judiciary was intended to substitute its will for the people’s on constitutional questions: Madison’s words, not mine. If, indeed, the judiciary is there to substitute its will on assertions of individual rights, it seems odd that the Court decided so few cases on this basis before the late 19th century. Reliance on the Court lets the people and their representatives off the hook for their own duty to interpret, and abide by, the Constitution. This is the sense in which it is unhealthy for republican government — which depends on a set of virtues atrophied by judicial supremacy — to rely so heavily on the Court. It may be worth remembering, further, that the Court will not always be, and certainly has not always been, as conservative as it is now. Conservatives who live by the judicial sword must be prepared to endure less friendly outcomes by it.

I think it represents the extent to which we have learned NOT to conflate legislative supremacy with still having a constitution that’s worth a bucket of warm spit. There’s not the slightest indication that any critical mass of Senators or Representatives have any interest in whether what they want to do is constitutional. Rather, if you challenge a member of Congress as to the constitutionality of some bill they’ve voted for, the usual reaction is either bafflement or rage.

“Conservatives complained when progressives, having lost battles on the field of public opinion, refought them before the Warren Court. But the challenge to the Affordable Care Act—which was filed by Republican state attorneys general—belies a willingness to use the Roberts Court for the same purpose.”

And yet, progressives lost in NOT having legislation enacted that was in line with public opinion. Conservatives lost in having constitutionally-suspect legislation enacted despite public opinion to the contrary.

To inflate the argument to the ridiculous, could not one postulate a Congress that enacts slavery over a clearly constitutional statement to the contrary. Let us assume even broad public support. Would the Supreme Court’s hands be tied to that legislative act? I would argue that its hands would no so be tied, even if its ruling were ignored.

“The question — why do we have a Constitution *** if not for the judiciary to enforce it**** — reflects the extent to which we have learned to conflate constitutional supremacy with judicial supremacy.”

That was *not* the question.

Simply put, without qualifiers, why do we have -a- constitution?
Why do we have – this- constitution?

Plausible answers:

We have *a* constitution to provide a mechanism for government.

We have *this* constitution to expressly determine the uses that may, or may not, be made of that mechanism; how and by whom..

We have this form of constitution to provide, through amendments, for the electorate to make other determinations.

Implicit in views about the paramount nature of “popular will” is the tyranny of the majority and the “value” of demagoguery.

“Reliance on the Court lets the people and their representatives off the hook for their own duty to interpret, and abide by, the Constitution.

Yet, if there are (as always) differences of views, conflicts in those interpretations, as well as the nature and allocations of the duties, both in interpretation and “abidance,” how shall they be resolved if not judicially in an open society?

“This is the sense in which it is unhealthy for republican government — which depends on a set of virtues atrophied by judicial supremacy — to rely so heavily on the Court. ”

So, it is *not* the judicial function, but rather the abandonment of necessary “virtues” by the citizenry to the “whims” of the judiciary that creates the need to shift that reliance solely to legislators and administrators to avoid civic sepsis?

Obviously, as Walter Lippmann noted 75 years ago, through “eugenics and education” we need to improve the citizenry to keep pace with what is needed for a “Good Society” through good government. Roll out that set of plans to raise up the “public” to their responsibilities, their duties.

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